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 American Politics
© Marc A. Triebwasser
 

The Drafting of the Constitution

In actuality, the people who were meeting in Philadelphia in the late 1780s were not supposed to be there to frame a new constitution at all. They had been empowered by their various states only to amend the Articles of Confederation. However, to amend the Articles would take the unanimous consent of all thirteen states--an almost assuredly impossible task. Moreover, many felt that the Articles were simply unworkable in any form. So, in order to establish a more efficient government, or as they put it "a more perfect union," some felt an entirely new document was necessary.

This is precisely what the Federalists--such as Madison and Hamilton--were pushing for. Of course, from a technical point of view, such an action was illegal. That is not what they were supposed to be meeting to do. They had been sent to Philadelphia to amend the Articles, not to write a new Constitution, and form an entirely new government. However, after their experience with the inefficiency of the Continental Congress under the Articles of Confederation, many felt that for the good of the government . . . and for the good of the country . . . some legal niceties might be put aside.

Philosophic Background

Well, what exactly were this second group of Founders trying to do? For the most part, they were trying to establish a more stable and workable government. In doing this, those in favor of a stronger federal government had sought models of government which might suit their purpose. Just as in establishing a club, one might want to look at the charters of already existing clubs, or in chartering a corporation one might want to see how other corporations had been established, the Federalists and others meeting at the Constitutional Convention delved into the political theories and models of their day in order to see how best to establish a new government. In so doing, they looked to Great Britain and other European countries for models and for political ideas. What the second set of Founders came up with in 1787 was a theory of government largely drawn from the ancient Greek philosopher Aristotle, and modified by the eighteenth century French thinker Montesquieu. Although it is true that the theory of government which the Founders actually used had been modified substantially from its original Aristotelian form, the fact remains that many of Aristotle's conceptualizations were still an important part of the ideas being discussed in Europe during the 1700s. Furthermore, the Aristotelian origin of the concept of government used by the Founders is quite significant. For this reason, we would do well to examine some of its elements more closely.

The Aristotelian Model

When Aristotle had looked around the world at the time of ancient Greece and examined the various governments of his day, he classified them into three basic types: government by one person, which he called monarchy; government by a few people which he called aristocracy; and government by the many, which we would call democracy. According to Aristotle, these good forms of government were meritorious in that whatever group was in power ruled for the benefit of the total society. In other words, what was important to Aristotle was how government was used rather than simply the way it was established.

Aristotle also noticed that each of these good forms of government seemed to degenerate over time from its good form to its bad form as the governmental leadership began to pursue their own personal good, rather than the good of the society as a whole. Thus, monarchy degenerates into tyranny; aristocracy degenerates into oligarchy; and democracy degenerates into mob rule--with or without the help of Madison Avenue or TV.

What Aristotle was primarily interested in was the establishment of a good governmental form which would remain stable and intact over long periods of time. In order to achieve this purpose, Aristotle suggested that the best form of government would be a mixed government: one whichcontained elements of monarchy, aristocracy and democracy. Thus in the seven original Articles of the Constitution, the Founders established a mixed government in the form of a republic.

This is a most important point to note. Their stated purpose was not that of establishing a democracy per se, but that of setting up a republic. They did not even suggest that they were establishing a democracy. Only one branch of government, in fact, was to be elected directly by the people: the House of Representatives. The term "democracy" itself is nowhere mentioned in the Constitution. The phrase used there is simply and most importantly "a republic."

The Separation of Powers

In order to achieve this mixed form of government and the separation of powers implied in it, in its original formulation the powers of government in the United States were to be divided between three branches on the national level: the President would represent government by the one, the monarchy; the Senate would represent government by the few, the aristocracy; the House of Representatives would represent government by the many, the democracy. Obviously, the separation of powers into these three branches of government is not only reflective of Aristotle's categories. It, of course, also reflects the division of government in Great Britain itself between the King (government by the one), the House of Lords (government by the few), and the House of Commons (government by the many).

According to the Constitution, the President of the United States was to be selected by a group of wise leaders, a national council of elders (or guardians, as the classical Greek philosopher Plato would have called them) in the form of an Electoral College. In order to legitimize this body in terms of "the consent of the governed," it was provided that the states, and later the people would select the members of this national council or commission. The members of the Electoral College would then, according to the dictates of their own individual intelligence and wisdom, select a President for the people and for the nation as a whole.

The Senate would represent the respective interests of the thirteen or more states. Thus, as originally projected, senators were to be selected by the state legislatures and not by the people directly. In fact, it was not until the passage of the Seventeenth Amendment to the Constitution in 1913 (almost 125 years after the government was founded) that this arrangement was changed, and senators came to be elected by popular vote.

As we have noted, the House of Representatives was viewed as the popular branch of government--that representing the people. And so, its members were chosen directly by popular vote. However, at the beginning of our nation's history, the electorate did not include the majority of the people. In order to vote, one had to be white, male, over 21, able to read, and own real property. Obviously then, the limited participation of the people in choosing national governmental officers would make it difficult to describe the government originally established by the Constitution as fully democratic in today's sense of the term.

The republican form of government which was established by the second group of Founders derived from a rather realistic appraisal of political processes. By placing power in different branches of government representing different groups among the populace, it was hoped that the individual interest of each particular group would be played against the other, and that out of this process policies favoring the good of everyone would emerge. In doing this, Madison expressed a combination of hope and realism in his famous statement borrowed from an earlier political philosopher: that if men were angels, they would need no government; and if men were devils, no government would work. People being somewhere between angels and devils, it was hoped that with the external pressures provided by well-designed governmental structures and processes, the best elements in people could be nourished and flourish.

The experience of many of the Federalists during the twelve years under the Articles of Confederation had led them to become very upset with the actual functioning of government. They had come to recognize that elitist special interests would always have some influence in government. Thus, when they envisioned senators as having been chosen by state legislatures, they were not unaware that these people would probably represent some of the special interests which dominated the various state houses. They also were very much concerned with the tendency of the people at large to follow the dictates of mob rule, and often to opt for policies which were not in their own long-term best interests. What the Federalists hoped for was that by playing one group against the other, the best interests of everyone would emerge through the process of bargaining and debate: through the process of separation of powers and of checks and balances which they hoped to establish in the Constitution. What they were thus trying to do in this way was to assure a balance between elite interests and majority rule.

Separation of Functions

In addition to the separation of powers discussed in the works of both Aristotle and Montesquieu, the framers of the Constitution also designed the government according to the conception of the separation of functions. In other words, the various branches of government were not only to be derived from different constituencies, they were also to carry out different functions. Congress, which included both the House of Representatives and the Senate, was to make the laws: the legislative function. The President and his aides were to carry out or administer the laws: the executive function. And the courts, or the judiciary, were to adjudicate or resolve disputes in the application of laws: the judicial function.

Thus, we see in the Constitution a very clear attempt to limit the power of government according to several major principles. First of all, as we have noted, the government would consist of several distinct branches sharing power, chosen according to different rules and by different constituencies. Secondly, the different branches of government would be primarily responsible for different governmental functions. Thirdly, as we noted earlier, aside from these distributions of power related to constituency and function, there was also to be a territorial distribution of power derived from the fact that what was being adopted was a federal rather than a unitary form of government. In other words, aside from the division of the national government itself into several branches, each of which shared power among themselves, the national government itself also shared authority with the thirteen or more individual state governments--which during the 1700s and most of the1800s were in most instances more powerful than the federal government.

And so, although the new federal government established by the Constitution was to be far more powerful than the government which had existed under the Articles of Confederation, even this new government was envisioned as having severe limits placed on its operations. To a great extent, the government established by the Constitution involved a process of consensus. Before any national policy could emerge, there had to be agreement among several branches of government, and theoretically among the constituencies that these branches were supposed to represent. There thus exists under the Constitution what we might consider a horizontal dispersion of authority in the national government among several coequal parts, and between the national government and the states.

Political Compromise

The provisions included in the Constitution had their roots not only in the more philosophical political principle of limiting the powers of the central government, they were also necessary because of the political realities of the time. The original thirteen states differed substantially in the size of their populations. By dividing the legislative authority between two chambers in the national legislature--the House of Representatives and the Senate--the Constitution was able to provide for the interests of both the bigger and smaller states. The less populated states would benefit in the Senate, where each state would have two representatives no matter what the size of its population. The larger states would benefit in the House of Representatives in which the number of delegates each state would have would be proportional to its population.

Another question which tended to divide the states considerably--and which tended to make the adoption of the Constitution almost impossible--was a split between the Northern and the Southern states over the question of slavery. The aspect of this matter which became particularly important in adopting a new Constitution was how slaves were to be counted in determining the population of a state, and therefore the size of its delegation in the House of Representatives. Some suggested that since slaves did not have a right to vote and were not afforded the rights of citizens, they should not be included in counts of the states' populations for the purposes of determining the size of the states' delegations. Others felt that slaves should be fully included in determining the size of the states' population, and therefore that of its Congressional representation.

In the end a compromise was reached, the famous Three-Fifths Compromise. According to this, each slave would be counted as three-fifths of a person, and thus those states with a large number of slaves would derive some--although not full--advantage from the residence of these slaves within its borders.

In discussing this latter compromise, one might well note that the agreement worked out in drafting the Constitution in no way dealt directly with the moral or substantive issue of slavery. Nor did it in any way represent a solution to this immense social problem--a problem which eventually led, not only to the Civil War, but also to much of the racial strife inherent in the school desegregation and urban problems of the late twentieth century. The Three-Fifths Compromise was rather simply a procedural device which allowed the members of the Constitutional Convention to bypass a moral and economic issue of the day, one which they were incapable of resolving. They were thus able to proceed with the establishment of a constitution without solving this and many other important problems.

In general, the governmental process that the Constitution provided was not one whose main goal was the setting of national policy or the development of long-term solutions to social problems. The function of the new national government as established by the Constitution was rather seen simply as the development of practical compromises among various local and sectional interests so as to allow for some degree or coordination within the country.

Purposes of the New Government

Another way in which the historical circumstances surrounding the framing of the Constitution deeply affected its content may be seen in the purposes the Constitution set out for the new government. On the whole, the Constitution pays more attention to establishing mechanisms of government that to suggesting the purposes for which this new government was to be used. It is true that the Constitution does begin with a very brief Preamble stating some overall purposes. In many ways, however, the Preamble is simply window dressing. It has not been used by the Supreme Court or other bodies in attempts to interpret the Constitution, or to make judgments regarding the powers of the federal government. Some attention to purpose, however, is paid within the body of the Constitution itself. Article One of the Constitution is devoted to the structure and powers of Congress. In Sections Eight to Ten of this Article specific mention is made of some of the purposes the government of the United States, as established by the Constitution, was supposed to serve.

Generally speaking these provisions deal with such matters as the regulation of foreign trade and interstate commerce, the coinage of money, the prohibition of the taxation of exports, the establishment of exclusive federal jurisdiction over import and similar duties, the establishment of the Navy and of diplomatic relations, and so forth. On the whole, we may classify these powers under three headings: economic and business matters, military affairs, and diplomacy. This is quite reflective of the economic and political conditions surrounding the development of the Constitution--including the problems that the young American nation was having with England, its former Mother Country, as well as the many problems that were being encountered in attempts to do business among the various states.

From the point of view of political principles, what is most interesting to note is that all of these matters represent--to a great extent--concerns over property rights. Nowhere in the original seven Articles of the Constitution was there any similar concern for the delineation of personal rights. Nor are the obligations of the federal government to "promote the general welfare" spelled out in this document. It is true that personal rights were enumerated later in the Bill of Rights, as we shall discuss shortly. However, nowhere in the original Articles or in any amendments to the Constitution, including the Bill of Rights, are such purposes of Government as the provision of education, health care, recreational facilities, the care of the young or the elderly, and so forth specifically listed or dealt with.

Thus we see that the vast changes in historical circumstances and the differences between the purposes of the Declaration of Independence and the Constitution of the United States respectively led to a reversal in some political concerns expressed in the Constitution, as distinguished from those stated in the Declaration. As you may recall, Thomas Jefferson had taken great pains in the Declaration of Independence to emphasize the protection of the substantive goal of the "pursuit of happiness" as one of the purposes of government. However in the Constitution, it is the mechanism of private property which is stressed rather than the goal of self-fulfillment.

This is not to say that the ends of personal freedom are not compatible with the provisions of the Constitution. What it does imply is that the means of property rather than the ends of freedom are stressed in this later document. In a sense then, what we see in the Constitution is a refutation of the Jeffersonian formulation and a return to that of John Locke. What we also see is that whereas the stress of the Declaration was on liberty and equality, the stress of the Constitution was on stability and efficiency--some very important, but very different, goals.

The Bill of Rights

When the details of the Constitution were released, there was a substantial amount of opposition in the individual states led by a group of people who came to be known as the Anti-Federalists. What the Constitution was to set up was a federal government, not simply a confederation as the Articles had established. This new form of national government would therefore not only have power over the various states, it would also have direct authority over the people--that is, over the citizens of the various states. Since under the Constitution the new national federal government would have greater powers and more direct authority over the people, many--including Thomas Jefferson of Virginia and DeWitt Clinton of New York--were concerned with putting definite limits on its power. They, therefore, demanded a national bill of rights to protect the citizens from the newly proposed more powerful national government, just as similar limits in state constitutions, and previously in colonial constitutions, protected citizens from the authority of the state and colonial governments.

And so, it was agreed that one of the first orders of business of the new government would be the adoption of a national bill of rights. The ten amendments to the constitution which are contained in the final version of the Bill of Rights included the civil liberties which over the more than 200 years of operation of the federal government have continued to be used to protect the rights of individual citizens. These include such fundamental liberties as freedom of speech, freedom of the press, freedom of religion, the right to due process, the right to a speedy and public trial by a jury of one's peers, protection from improper search and seizure, the right not to have to testify against oneself, and so forth.

One might note that the personal protections of the Bill of Rights were for a long time only valid against the federal government, but not against the states. It was only with the passage of the Fourteenth Amendment after the Civil War that these protections also came to be applicable to the states. Moreover, it was only in the 1930s that the Supreme Court actually began to enforce the provisions of the Fourteenth Amendment for the protection of individual persons.

Was the Constitution Democratic?

Although the Declaration talked about government "by the consent of the governed," we have already seen that this principle was certainly not the main thrust of the Constitution. Only one organ of government, the House of Representatives, was to be elected directly by the people. In addition, the people who were able to vote even in electing this body were extremely limited and did not include, for example, blacks, women, young people under the age of 21, people who could not read and write, and people who did not own real property.

It is also significant to note that after ratification of the Constitution, the people were not empowered to amend the Constitution directly, but could only act through governmental officials whom they had elected. Amendments to the Constitution may be proposed either by a two-thirds vote of both houses of Congress, or by the vote of the legislatures of two-thirds of the states--in other words, by national or state legislators. After being proposed, amendments must be ratified either by the legislatures of three-fourths of the states or by constitutional conventions in three-fourths of the states. Thus, although the Constitution did allow for some form of popular representation, there were major provisions in this document designed to protect the government from the abuses both of special interests and of what those in the Constitutional Convention considered to be "the excesses of majority rule."

Given such thrusts of the Constitutional Convention which we have been discussing, the question is sometimes asked as to whether or not the Constitution is indeed a democratic document. Certainly it is true that the Constitution differs in many significant respects in both purpose and content from the Declaration of Independence. And this is particularly important to note since it is only the Constitution--and not the Declaration--which has the force of law.

However, in judging the Constitution, one needs to put it into historical perspective. It is indeed true that in many ways the Constitution may be seen as less than fully democratic by current standards. Nevertheless from the point of view of the late 1700s, the Constitution of the United States and the government it established represent a sizeable advance in the creation and furtherance of democratic institutions and principles.

The Constitution and the American experiment it ushered in has been used by many other countries over the last two centuries in modeling their own new forms of government. Obviously, the American experiment had a great deal of influence on developments in France and other European countries during the 1700s and 1800s. And the republican form of government, designed to minister to a large scale populace, as established by the U.S. Constitution represents an organizational model which has been adopted by many countries throughout the world today. It is interesting to note along these lines that when the governments of Africa were gaining their independence in the 1950s and 1960s, such American works as the Federalist Papers were particularly popular among the leaders of these countries in discussing the forms that their governments should take. In view of all these succeeding developments, the Constitution might be far better judged in terms of its political and historic importance, rather than by trying to impose today's standards on this historic document written almost 200 years ago.

Although the Constitution does emphasize certain governmental purposes, rather than others, in many ways it does establish a reasonably neutral mechanism of government which is able to operate in any direction that those powerful enough to influence it may direct. Thus while many of the democratic and humanistic principles of the Declaration were not directly incorporated into the Constitution, this does not mean that the Constitution cannot be used to promote such principles.

What it does mean is that these principles are not automatically a part of our governmental structure and processes, and that continual efforts must be made to orient federal governmental activities in the direction of such principles. For this important reason, it is not enough for us as students of politics simply to look at the operation of governmental institutions in order to understand the way in which American politics functions. We must also study the environment in which governmental structures operate and examine the pressures which are brought to bear on them, in order to understand the thrust which policies emanating from governmental institutions are likely to take. And, as citizens, we must continue to take such actions as to ensure that the government acts in the best interest of the people.
 
 

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